Sunday, April 15, 2012

I wish I’d kept the Private Eye cartoon of the publisher holding a large manuscript with the title “Bugger All.”

“Actually, Mr Frobeshire”, he is saying “when we said ‘write what you know’…”

Of course, we know what “write what you know” means: it means “write what you know and not what you read in some book”. You don’t have to be a vampire to write a teenaged vampire novel (though it probably helps) but for god-sake don’t set it in a trendy high school in California if you went to a bog-standard comp in the north of England. You’ll end up looking like a wally. (See also under Rowling, J.K.)

I mention this, because regular readers may have spotted that I am terribly reluctant to write about what I know: the interesting stuff is what I don’t know. On an average day, I work out what I think about DC’s opportunistic piece of shit Watchmen knock offs in the act of writing essays about them (essay = trial run). On a good one, I catch the eureka moment of consciousness on paper. I still think that the “What I really think about Matt Smith” piece is the best I’ve ever written.

At some point, I’m afraid I am going to have to come back and have another go at the marriage thing, which ought to be interesting, because I’d like to figure out what I think. I’m a bit reluctant to do so because I don’t know where I will end up; and I’m fearful of colliding with the brick wall of people who already know, and who, indeed, have declared in advance that no other viewpoint is conceivable. Go one way, and I’m actively working towards the downfall of western civilisation; go the other, and I’m simply a Nazi. A while back, I wrote a few lines on one of those forums about what I understood Clause 29 to have been, and why I think it came about. “A small-minded over-reaction to the use of some arguably age inappropriate sex-ed material in junior schools”, I think I said. Whereupon I was roundly accused of supporting genocide, or at any rate, supporting people who supported genocide.

You can see my reluctance.

But here is one thing I'd have to sort out before I started. I'm asking the question, you understand, because I don't know the answer, not because I do.

What does the Church of England think about voluntary celibacy in marriage?

And come to that, what does the Church of England think about the voluntary separation of married couples?

See, if I’ve got this right, the Church of England thinks that God invented marriage for three purposes - Procreation, Sex and Companionship. There was also a sort of big meta-reason: he intended the relationship between a married couple to be a sort of icon of the relationship between Jesus and the Church.

This iconography does not, incidentally, make marriage a sacrament in the way that solemnly re-enacting the Last Supper is a sacrament: note that the prayer book has a Sacrament of Holy Communion, a Sacrament of Baptism, but a service for the Solemnization of Marriage. Very clever people who say that the Church of England regards marriage as a sacrament may be making an honest mistake; people who talk about marriage “having a sacramental dimension” (very probably “in a very real sense”) are deliberately trying to throw dust in your eye.

Not sure where they got the “first, marriage was ordained for the procreation of children”, part from, either. The Bible seems pretty clear that God made Eve because Adam needed a helper, and that they only “knew” each other after they’d been kicked out of the garden. But going to the Bible to find out about Christian marriage will tie you up in knots: the Old Testament seems to regard polygamy as permissible but inadvisable; the New to regard marriage as a necessary evil.

So anyway: what’s the Church’s position on non-consummation: if two consenting adults get married, is sex compulsory? And what happens if a married couple lives apart for some reason: say if a woman chooses to marry a sailor who is only allowed to come ashore for one day every seven years; or even if a prison visitor chooses to marry a convict who he will never live with or possibly even touch? Unusual set ups, certainly: uncommon, inadvisable, but does the church forbid them or say that the couples in question are not really married?

Come to that, what happens if a couple who don’t really like each other marry — say, because their parents really want grandchildren, or because the future King of England has pretty much got to have a beautiful Queen, or because one or both parties is pregnant, or even to secure a dowry or an inheritance? I mean, these may all be really, really bad ideas, and the Church might counsel against them, but are the couples in question Not Really Married? And suppose, while continuing to dislike each other, they stick to their vows, stay together, and make the best of it. Married, or not married? You tell me.

You see where I am going with this. Marriage was ordained for three purposes: babies, sex, and companionship. Certain Christian factions appear to be arguing that a proposed new kind of marriage is a contradiction in terms; an impossibility; a sin and (in some cases) the harbinger of the end of western civilisation -- because it can’t possibly produce babies. Logically, they must mean either that if you remove any one of three elements from the prayer book then what you are left with is not marriage; or that you can have marriage without sex, or marriage without companionship, but you cannot have marriage without babies. (Which is a problem in itself, because the church does, I believe, permit very old people to get married if they want to.) Or else they are working from some source of ecclesiastical authority other than the Book of Common Prayer. (Johnthelutheran helpfully points out that the prayer book definition is taken for granted in actual English law.)

I am not terribly interested, for the moment, in finding out what the Church of England ought to think; or hearing arguments for an against disestablishment; or hearing from people who think that what the Church of England thinks is bronze age savage sky fairy sky fairy sky fairy wobbly sets wobbly sets wobbly sets. I’m interested, for the moment, as a point of information, in finding out:

a: what the church of England does in fact teach about voluntary celibacy and voluntary separation in marriage and

b: when, or on what basis it was decided that Cranmer made a Mistake and that marriage was ordained, not for three reasons, but only for one.

I'm not really going to answer your questions (other than to point you in the direction of canons B30 to B36 - which come under the heading of "the administration of the sacraments", incidentally...), but just to respond to a couple of points:

if two consenting adults get married, is sex compulsory?

Not "compulsory", but if they never have sex then the marriage can be (to use the legal jargon) "avoided" - i.e. dissolved for non-consummation.

As for the broader "what if one of those three components is missing from a particular marriage?" question, I'd say this: there's a difference between saying what an institution is for, and saying what is necessary to make a given instance of that institution valid. For example, MPs are there to represent their constituents: "if" an MP chooses to follow their own agenda and ignore their constituents' wishes, they are going against the purpose of their office, but they don't thereby cease to be an MP (though they may well do at the next election, if their constituents have any sense, he said, waving in the general direction of Bradford West).

So the purpose of marriage, as understood in English law, is that threefold connection between companionship, sex and procreation. In some cases, one or more of those elements may be missing or impaired - which means that the marriage isn't completely fulfilling the purposes of the institution, but it's still a marriage (and not necessarily a "bad" marriage at that - many of your examples are of a married couple making the best of non-ideal circumstances).

However, certain proposed changes in the law which you don't mention expressly in your post and so I won't here ;-) would involve enshrining in law the proposition that marriage only actually has one purpose: the legal recognition of a "committed, loving relationship" - that is, the third of the BCP's purposes for marriage, "companionship". Which is a significant change in the purpose of the institution, though arguably one which simply reflects the process over the last century of coming to see marriage, sex and procreation as only very incidentally connected with one another.

John H, do you mean (1) that the proposed updates to the law would make it say, in so many words, that the only purpose of marriage is the legal recognition of a committed loving relationship, or (2) that they would permit some other thing (goodness me, I can't imagine what) that would be nonsensical unless the only purpose of marriage is t.l.r.o.a.c.l.r., or (3) some other thing?

"However, certain proposed changes in the law which you don't mention expressly in your post and so I won't here ;-) would involve enshrining in law the proposition that marriage only actually has one purpose: the legal recognition of a "committed, loving relationship" - that is, the third of the BCP's purposes for marriage, "companionship". "

No, they wouldn't. They wouldn't enshrine *anything* in law except that same-gender couples could get married in a registry office if they wanted to. There is no mention in any proposed law of any purpose for marriage, and even if there were, it would only say that was the only purpose recognised by the government, not that it could have no other purpose or that a church could not view it as having any other purpose.

(In fact, the changes proposed specifically avoid dealing with religious questions by banning all religious organisations from performing same-gender marriages, even if they want to. Some of us are trying to get that changed.)

It's also not the case that all couples affected would be unable to procreate. Legally, at the moment, same gender couples where one member is trans but has a gender recognition certificate can't marry at the moment. You don't need to have undergone surgery on your reproductive organs to get a gender recognition certificate. So there are couples right now, consisting of two women (one of whom has a penis and testicles) or two men (one of whom has a vagina and womb), who are physically capable of procreating but can't legally marry, though they can get a civil partnership.

Another theological question related to that which might affect views on the current laws -- "what God has joined, let no man put asunder". Right now, if a couple have married and one of them undergoes transition and wants to get a gender recognition certificate, they have to divorce, get the certificate, and then get a civil partnership. Is it right that there should be laws forcing divorce on those who wish to stay married?

(My wife and several of my closest friends are members of the executive for LGBT+ Lib Dems, and have been involved in the consultation process about the new laws, as well as setting party policy on the matter. You'd be *amazed* how many edge cases there actually are...)

Gareth, having now read the post by John that Andrew linked to, he seems to think that because the opening paragraph of the section of Halsbury's Laws Of England states some things about how marriage is defined (without actually referring to a statute) this means that anything going against that definition fundamentally changes marriage. Note that the definition he quotes says that marriage is "a union permanent and life-long, for better for worse, till death them do part, of one man and one woman". This would seem to mean that divorce is illegal under current English law, if we are to take John's argument at face value.

MikeMany trans* and other-gendered people make a distinction between 'sex' and 'gender', which I don't quite understand, but I know they care a lot about, and some of them get upset when the wrong term is used. I tend in matters like this to follow a rule of using the language that will least upset those with most at stake in the matter, and I *think* same-gender is right for marriage in this case (though now I've got a horrible paranoid feeling it isn't).

Many years ago, some humourless bureaucrat got tired off people writing "As often as possible" or "Yes please" on official forms, and decreed that instead of asking people to specify their "Sex" they would henceforward ask people for their "Gender". Some wit (possibly Quentin Crisp) took to giving the answer "Masculine."

As I understand it, "sex" is biological while "gender" is the social role that you inhabit. The WHO have a short but usefully clear note on this, although they're rather too keen to make it a binary and link one with the other:

On the other hand, I've heard it suggested that marriage was often much more of a civil contract than a matter of religion, and the church kind of hijacked it back in the early middle ages. I really don't know enough about the history to say whether this is true or someone people's attempt to make a dig at the church, but there was presumably some date at which it was first declared to be a sacrament, and I'd be vaguely interested to know how early that was.

Personally, the day they make me Lord Protector, I'll scrap the whole concept of civil marriage and any references whatsoever to marriage in law, set up a low-key system of registered partnerships that can involve any two people who happen to want to to pool resources, be first called in the event of accident or emergency, et cetera, and say that religions (and for that matter secular organisations and individuals) can use whatever words they like and treat whatever they like as an excuse for a party. But the sods keep not giving me the dictatorial power I so richly deserve.

Another point of pedantry: 'chastity' does not mean 'abstaining from sex', 'chastity' is simply Christian the virtue that relates to sex, in the same way that 'charity' is the Christian virtues that relates to how we treat people.

'Chastity' doesn't mean 'abstaining from sex' any more than 'charity' means 'giving money to Oxfam'; just as 'charity' means 'haveing the correct attitude to peoplee' and that that sometimes includes giving money to Oxfam but also includes a whole lot more as well depending on the situation, so 'chastity' means 'having the correct attitude to sex', which includes abstaining from it when that is appropriate (ie, with anyone to whom you are not married) but also includes a whole lot more depending on the situation.

(As I understand it, 'gender' refers to the field of study that includes whole culturally-constructed attitudes to the sexes and their relationships; I'm not even sure it makes sense to ask someone what 'their gender' is. It would be like asking someone, what is your sociology?' when you mean, 'what class are you?')

Note that the definition he quotes says that marriage is "a union permanent and life-long, for better for worse, till death them do part, of one man and one woman". This would seem to mean that divorce is illegal under current English law, if we are to take John's argument at face value.

Well, no; it means that the introduction of divorce (and remarriage) fundamentally changed the definition of marriage in English law. Which I don't think many people would argue that it didn't. Some might claim it changed it for the better, but it clearly changed it.

The current proposals would then be another fundamental change, on top of the introduction of divorce (and would, I would argue, push us further along the road where marriage is seen not as the normative and only proper state for families, but simply one possible lifestyle choice among others, all equally valid).

SK - the definition of gender that Sam gives above is the one I was attempting (badly) to use. That seems to be used by most LGBT+ activists I know.

And John is arguing in his piece that that definition *is the current definition*. Which it clearly isn't, and hasn't been in over a century. Without that, his whole argument that this somehow affects mixed-sex marriages is a nonsense. Obviously any change to marriage laws can be seen as a 'fundamental change', but given that it confers no new rights or responsibilities on anyone in a mixed-sex marriage now or in the future (except the right to stay married should one partner obtain a Gender Recognition Certificate) I fail to see how it affects any currently-existing marriage.

And as for "push[ing] us further along the road where marriage is seen not as the normative and only proper state for families, but simply one possible lifestyle choice among others, all equally valid", I fail to see how allowing more people to get married makes marriage *less* normative.

In fact there is a radical fringe of lesbian and gay activists (and for some reason they do seem to be pretty much all cisgendered lesbians and gay men, with very few bisexuals or trans* people taking this attitude) who argue that by allowing them to get married, the government will be putting pressure on them to conform to traditional heterosexual ideas of monogamous family life, and oppose same-sex marriage for that reason.

(Personally, my view on that is that I *do* see marriage as one choice among many, none of which is right for everyone, but that it's been an extremely good choice for me and I want as many people as possible to have the right to make that choice, even if they choose not to.)

There was also a sort of big meta-reason: he intended the relationship between a married couple to be a sort of icon of the relationship between Jesus and the Church.

And according to Jesus (Mark 10), it's also something to do with the prelapsarian imago dei, though quite in what way is not entirely clear.

So while I know that:

Certain Christian factions appear to be arguing that a proposed new kind of marriage is a contradiction in terms; an impossibility; a sin and (in some cases) the harbinger of the end of western civilisation -- because it can’t possibly produce babies.

is a deliberate simplification, it is as well to remember when you come to write the eassy that the general argument is not that same-sex marriage is disordered because it cannot produce babies but that it is disordered and one of the ways you can tell it's disordered is that it cannot produce babies.

That is, the non-procreative nature of a same-sex marriage is not seen is the reason why it's wrong, but that non-procreative nature is a symptom of an underlying disorder.

In the same way that these groups would not say that incest is wrong because of the likelihood of disabled children, but that the likelihood of disabled children is a symptom of the fact that incest is disordered (otherwise, you would have to say that there is nothing wrong with consensual non-abusive incest (say, between a brother and sister who don't meet until they are adults) provided one of the couple is infertile).

"it is as well to remember when you come to write the eassy that the general argument is not that same-sex marriage is disordered because it cannot produce babies but that it is disordered and one of the ways you can tell it's disordered is that it cannot produce babies."

Which is, of course, incorrect, as there are same-sex couples who *can* produce babies who are legally not currently permitted to marry.

This is why I keep harping on about trans people in this thread, because currently in the UK people's legal sex is detached from their reproductive organs, and has been since 2004, and one's ability to marry is based only on legal sex, so the current ban *does* stop couples who are perfectly interfertile from marrying and allow couples who have the same reproductive organs to marry. Any argument about procreation as a function of marriage which doesn't take this into account is a flawed one.

Note that the 2004 Gender Recognition Act was, then, just as much of a fundamental change in the nature of marriage as the new proposals. More in some respects, as it created a class of people who legally *had to get divorced against their wishes* -- a class which the new proposals will remove.

That same act also explicitly removed any necessary link between 'holy matrimony' and marriage in UK law, if one was still remaining, because up until that point the law said that Church Of England vicars *could not refuse* to marry any couple who could marry legally. Now it says that they *can* refuse to marry couples who can marry legally, if the sex on the birth certificate of one of them differs from the sex on their Gender Recognition Certificate.

When dealing with changes to marriage law, we really have to start with where we actually are legally, rather than with a Platonic ideal of marriage. A lot of things people assert about the nature of marriage might be true for *their* marriage, or for marriage in their religion, but are already very far from true when it comes to the actual law.

(Which I think is one of Andrew's original points -- he wants to know how theology interacts with the currently-already-messy legal situation, before deciding if the changes will make that interaction messier or less messy...)

Except he's addressing the theological arguments about a change in the law, in which case knowing what the law is now, and what it will be changed to, is an important first step.

After all, the new laws will have only the same theological weight, or lack of same, as the GRA, since they very specifically won't allow churches (even those that want to) to perform same-sex marriages (though a number of people I know are hoping to see that changed, so that Quakers, Reform Jews, and other denominations that wish to can perform such ceremonies).

(Though if one were to address the legal issues, apparently the consultation is based on a false premise by claiming that 'religious marriages' would not be affected: apparently there is no such thing as a 'religious marriage' or a 'civil marriage' in English law, just 'marriage', so changes to one necessarily after the other; and while it may be true the 2004 Act removed 'any necessary link' it didn't explicitly create a new state of 'civil marriage' (to do that would take a proper explicit mention in an Act, it couldn't just be done as a side-effect, I think) and as a result the government's current proposals (which I personally doubt will get through Parliament before the next election, but that's by the by) cannot but make the legal system messier: to make it less messy would require a new Act explicitly setting out what the legal definition of marriage in England is, and that is one thing that is definitely not on the cards.)

I believe the argument is that the Government is wilfully confusing the concepts of "marriage" (=the legal status) and "wedding" (=the ceremony which confers the legal status). There are assuredly "civil weddings" and "religious weddings", as well as Jewish weddings, Christian weddings, Sikh weddings and weddings where everyone dresses up as their favourite Dungeons & Dragons character and the service is conducted by the highest level Cleric. But so far as the law is concerned, they all end up with you being "married" with the same rights and responsibilities under the law (except the D&D wedding, which would have to be preceded, at the very least, by the signing of some papers in a registry office.) When the government talks about "civil marriage" and "religious marriage" they are either a: not expressing themselves very clearly b: not thinking very clearly c: deliberately trying to get the ship confused.

I think it's d) they're using 'marriage' to mean 'marriage ceremony'. See for example http://www.homeoffice.gov.uk/publications/about-us/consultations/equal-civil-marriage/ , where the phrase is explicitly clarified - "to enable same-sex couples to have a civil marriage i.e. only civil ceremonies in a register office or approved premises (like a hotel)"

As for the rights and responsibilities, of course same-sex marriage will lead to same-sex married couples having the same rights and responsibilities as those of current married couples, that being the point. What I fail to see is how that makes the legal system any messier than it already is.

Quite simply, the proposed laws simply *do not affect, in the slightest* any of the rights or responsibilities of marriage as it applies to mixed-sex couples. All they do is allow same-sex couples to have those same rights and responsibilities. The only 'redefinition' of marriage going on is to say that same-sex couples now have the same option that mixed-sex couples have.

No-one has yet made a case for why that is more of a 'redefinition' of marriage than any other change to the marriage laws.

So the argument boils down to "we mustn't allow same-sex couples to get married, because that would mean that same-sex couples could get married"

Incidentally, while "civil wedding" may be a less ambiguous term than "civil marriage", civil marriage does appear to be the term in widespread use, as a quick Google shows. When the government make that distinction, they seem to me to be merely following common usage.

I fail to see how allowing more people to get married makes marriage *less* normative.

Something being normative has nothing to do with how many people could get married, though, and everything to do with whether people think they should.

And there is evidence from the Scandinavian countries that when same-sex marriage is legalised the illegitimacy rate takes a sharp turn up, indicating that people no longer see any normative connection between 'having children' and 'being married'.

So it seems that in the Scandinavian countries at least (and I see no reason to suspect that we'd be any different) increasing the range of options available to one group of people causes another group of people to reassess their options and come to the conclusion that what they thought was the thing they should do is in fact just something that they could do if they wanted but need not.

One might suggest that a Conservative-led government should be in the business of reinforcing marriage as the only proper context for bringing up a family, not in the business of doing something which has demonstrably caused people who otherwise might have got married before having children to go, 'hang on, gay people can now get married but on the other hand a lot of them seem to get along fine without, so maybe we don't either' and increasing the country's supply of bastards.

I think it's d) they're using 'marriage' to mean 'marriage ceremony'. See for example http://www.homeoffice.gov.uk/publications/about-us/consultations/equal-civil-marriage/ , where the phrase is explicitly clarified - "to enable same-sex couples to have a civil marriage i.e. only civil ceremonies in a register office or approved premises (like a hotel)"

The thing is that it's very unclear, if the state-of-being-married is available on one basis, that the ceremony-to-get-into-that-state get be administered on a different basis.

Bluntly, if, after the legislation were passed, and a same-sex couple were to ask a parish church to marry them, and the church were to refuse, and they were to sue the parish church, what would be the result? What if they appealed to the ECHR?

Even if the government were to specifically write into the Act 'churches do not have to provide same-sex marriage if they don't want to' there are hints in recent judgements that the ECHR could regard that as discriminatory. We are now in a situation where Parliament is not soverign, so the government cannot promise 'this legislation will not affect religious ceremonies provided by denominations which do not wish it' because that relies on the ECHR sharing their view of what legislation can do and that is not a given.

That one won't fly. Some religions won't perform wedding services for divorced persons; some religions won't perform wedding services for people outside their faith. No-one has remotely told them they have to.

But 'being divorced' is not a protected attribute in discrimination legislation, whereas 'sexual orientation' is. That means that the legal situations are different: you couldn't sue someone who refused to serve you coffee because you were divorced, but you could sue someone who refused to serve you coffee because you were gay.

A suit based on discrimination on the grounds of sexual orientation over provision of the service of 'becoming legally married' would certainly 'fly'.

Would it end up, after appeals, with a decision against the parish church? That I do not know and neither do you, and neither does anyone else. But it is certainly not the case that it absolutely definitely wouldn't, regardless of what the government writes in the Bill.

Except that churches are exempt from most anti-discrimination legislation anyway -- for example not employing gay men as Catholic priests, or Muslims as rabbis. And the exemption for CofE priests to not have to perform marriages where one of the people involved is trans (another protected category) has been upheld.

As Andrew points out, as well, many churches refuse to marry people outside of their faith -- another protected category.

"Even if the government were to specifically write into the Act 'churches do not have to provide same-sex marriage if they don't want to' "

Which isn't what is being proposed, as you have already been told multiple times. The plan is to write in "Churches *can't* provide same-sex marriage *even if* they want to".

I've not seen the evidence from Scandanavian countries you cite, so I'll accept that for the moment. You then say "One might suggest that a Conservative-led government should be in the business of reinforcing marriage as the only proper context for bringing up a family,"

I don't think either Andrew or myself are interested in making the Conservative party be more Conservative. For myself, I'm a Liberal Democrat, and want to "build a free and open society, in which we seek to balance the fundamental values of liberty, equality and community, and in which no-one shall be enslaved by poverty, ignorance or conformity". I'm not particularly interested in whether children are born outside marriage or not.

"One might suggest that if the government, acting in its capacity of legislature, has the option of being legally precise or following common usage, the former is the better course!"

One might also point out that no-one here has been discussing the wording of the legislation, because it's not been published yet (and won't be til after the Queen's Speech). Rather, what has been discussed is the material that has been put out by the government to help interested parties understand what's being proposed, so the consultation can be effective.

I think I understand your frustration, anyway. But I'm not sure if you understand to what extent the terms of the argument are the contested territory here. For liberals it's a question of rights. For conservatives it's a question of tradition, as expressed in law and theology. That makes it very hard to reach a satisfactory nuanced position by considering the arguments on both sides. For values of "satisfactory" that involve not being attacked by both sides, anyway.

For liberals it's a question of rights. For conservatives it's a question of tradition, as expressed in law and theology

I suppose if you wanted to be pithy, you could say that for one lot it's a question of rights and for the other a question of Right.

(And of course, those for whom it's a question of rights might reach different conclusion about what rights exist and how they should be protected; and those for whom it's a question of Right might reach different conclusions about what Right is. But discussion can only really take place within the two main groups, because between them there is no common language.)